djomttton  wealth  of  Jjtasaqhuslfl 


AGAINST 


THE  STATE  OF  RHODE  ISLAND 


AND 


PROVIDENCE  PLANTATIONS. 


READ  AND  CIRCULATE. 


TAUNTON: 

PRINTED  BY  C.  A.  ITACK,  7  UNION  BLOCK, 
1861. 


Digitized  by  the  Internet  Archive 
in  2019  with  funding  from 
Duke  University  Libraries 


https://archive.org/details/commonwealthofmaOOtaun 


MASSACHUSETTS  vs.  RHODE  ISLAND, 


THE  CASE  AS  IT  IS. 


From  the  early  settlement  of  this  country  down  to  the  year  1741, 
the  Plymouth  Colony  and  Massachusetts,  after  they  were  united  in 
1692,  extended  from  the  Atlantic  Ocean  to  Narraganset  Bay  and  the 
Seekonk  and  Blackstone  rivers.  The  present  towns  of  Cumberland, 
Barrington,  Warren,  Bristol,  Tiverton,  Little  Compton  and  Fall  Riv¬ 
er,  now  in  Rhode  Island,  received  the  charter  of  their  existence  from 
what  is  now  Massachusetts.  For  that  whole  period  they  were  under 
her  jurisdiction,  sent  representatives  to  her  General  Court,  paid  taxes 
to  her  officers,  held  their  title  deeds  under  her  laws,  and  had  justice 
administered  in  her  courts.  In  all  respects  they  were  as  much  a  part 
df  Massachusetts  as  the  town  of  Boston  itself.  They  were  such  by 
natural  position,  by  original  charter  from  the  British  Crown,  by  pur¬ 
chase  from  the  aboriginal  owners,  by  prior  settlement,  by  more  than  a 
century  of  quiet,  peaceable,  undisputed  possession  and  jurisdiction. — 
Indeed,  this  last  ground,  were  there  no  other,  would  vest  the  complete 
jurisdiction  over  those  towns  in  Massachusetts ;  since  States,  as  well 
as  individuals,  may  acquire  rights  by  long  continued  possession.  4 
Howard’s  Rep.  591. 

In  justice  and  equity  therefore  Massachusetts  ought  at  this  day,  as 
heretofore,  to  have  and  enjoy  her  domain  to  the  centre  of  Narragan¬ 
set  Bay  and  the  rivers  above  named.  But  let  that  pass.  It  is  now 
too  late  to  recover  the  lost.  It  may  not  be  to  preserve  the  remainder. 
Massachusetts  has  once  been  robbed  of  the  fairest  portion  of  the  Old 
Colony.  Shall  the  spoliation  continue  ? 

In  the  year  1741,  as  before  stated,  Rhode  Island  set  up  a  claim  to 
a  portion  of  Massachusetts,  and  Commissioners  were  appointed  by  the 
British  Crown  to  hear  and  determine  the  controversy.  They  did  so ; 
and  set  off  to  Rhode  Island  the  towns  before  named,  and  also  estab¬ 
lished  the  line  in  Seekonk  river  at  “  the  eastward  side  thereof.”  Had 
these  Commissioners  fixed  precisely  where  the  new  line  established  by 


4 


them  really  was,  the  controversy  between  the  states  as  to  this  bound¬ 
ary  would  probably  have  terminated.  But  they  did  not.  They  did 
not  go  upon  the  land,  measure  and  run  out  the  lines,  and  set  up  mon¬ 
uments  thereon.  They  merely  described  the  line  on  paper,  giviug  the 
points  of  beginning,  the  courses,  distances,  &c.  The  line  of  separation 
was  described  by  them  as  a  line  three  miles  east  and  north-east  from  cer¬ 
tain  well  known  points  on  the  eastern  shore  of  Narraganset  and  Mount 
Hope  Bay.  And  immediately  after,  without  proper  notice  to  Massa¬ 
chusetts,  Rhode  Island  proceeded  to  run  the  line  ex  parte.  Her  Com¬ 
missioners  ran  too  far  inland,  and  appropriated  to  Rhode  Island  a  por¬ 
tion  of  the  rightful  territory  of  Massachusetts,  of  an  average  width  of 
one  third  of  a  mile,  and  from  thirty  to  forty  miles  in  length.  This 
fact  is  not  in  any  degree  doubtful.  It  has  been  ascertained  by  repeat¬ 
ed  measurements,  and  admitted  by  Commissioners  of  Rhode  Island,  in 
a  report  to  the  General  Assembly  of  that  state,  made  in  1791.  There 
is  also  a  question  whether  the  “  eastward  side  ”  of  Seekonk  river  is  at 
high  or  low  water  mark.  This  is  the  difference  between  the  two  states. 
It  is  true  that  a  majority  of  the  Massachusetts  Commissioners  appoint  ed 
in  1844,  did  substantially  agree  with  the  Commissioners  from  Rhode 
Island  upon  a  boundary  line,  and  so  reported  to  the  Governor  and 
Council  in  1848.  But  their  proceedings  were,  witli  entire  unanimity 
and  no  little  indignation,  declared  by  the  Legislature  to  be  “  null  and 
void,”  and  a  special  Commissioner  was  appointed  in  1852  to  prostrate 
the  eighty-four  stone  monuments  set  up  by  the  Massachusetts  officers. 
[See  No.  128  of  the  Senate  Documents  for  1848.  Resolve  of  1848, 
ch.  75,  and  of  1852,  ch.  61.]  Nothing  can  more  forcibly  illustrate 
the  sensitiveness  of  the  people  of  this  Commonwealth  to  the  action  of 
any  of  her  officers,  by  which  her  rights  in  this  disputed  territory  should 
be  at  all  compromised ;  and  this  action  is  the  more  significant  when  it 
is  remembered  that  the  Massachusetts  Commissioners,  whose  action 
was  thus  repudiated  after  full  and  faithful  examination  before  a  special 
committee,  were  the  Hon.  Myron  Lawrence,  of  Belchertown,  and  the 
Hon.  Wm.  Bay  lies,  of  Bridgewater. 

One  more  effort  was  made  to  settle  upon  a  compromise  or  conven¬ 
tional  line,  and  three  Commissioners  were  appointed  by  the  Governor 
to  confer  with  like  Commissioners  from  Rhode  Island.  Three  years 
were  spent  in  negotiations,  but  without  success.  Finally  in  1851, 
the  Commissioners  reported  that  it  was  improbable  any  satisfactory 
negotiation  could  be  effected  until  the  true  line  was  settled. — 
[See  House  Doc.  No.  120, 1851.]  Thereupon  Gov.  Boutwell,  under  a 
resolve  of  1848,  c.  75,  instituted  a  suit  in  equity  in  the  Supreme  Court 
of  the  United  States,  for  its  final  determination.  The  bill  was  filed  in 
1852,  asking  that  Court  to  appoint  disinterested  Commissioners  to  run 
out  the  line  as  described  by  the  King’s  Commissioners  in  1741,  and 
set  up  monuments  thereon,  so  that,  its  exact  position  might  be  known. 


5 


ascertained  and  established.  This  was  a  simple,  natural,  rational  way 
of  settling  the  controversy.  It  is  the  way  two  farmers  would  natural¬ 
ly  take  to  determine  a  disputed  boundary  between  their  estates.  It 
looked  entirely  towards  ascertaining  and  determining  the  true  bound¬ 
ary  line  ;  if  not  exactly,  yet  as  nearly  as  practicable.  Now  comes  the 
first  extraordinary  step  in  the  history  of  this  controversy,  and  one  which 
demands  the  scrutiny  of  the  people  of  this  Commonwealth.  Before  any 
hearing  lias  been  had  under  the  proceeding  in  equity,  before  any  Com¬ 
missioners  have  tried  to  run  out  the  line,  and  even  before  any  have 
been  appointed  for  that  purpose,  a  proposition  is  made  to  abandon  all 
effort  to  find  the  real  line,  or  even  an  approximation  to  it,  and  instead 
thereof  to  create  an  entirely  new,  arbitrary  and  artificial  boundary,  by 
ceding  to  Rhode  Island  the  flourishing  town  of  Pawtucket  and  the 
more  valuable  portion  of  Seekonk,  in  exchange  for  the  town  of  Fall 
River,  R.  I.,  and  a  small  portion  of  Tiverton.  Is  such  a  proceeding 
necessary?  Is  it  just  and  expedient  ?  Is  it  constitutional  ? 

First, — Is  it  necessary  ?  The  main  argument  in  its  favor  is  that  the 
question  is  of  long  standing,  and  ought  to  be  settled  in  some  way ;  that 
“  the  true  line  is  now  difficult  of  verification,  on  account  of  the  uncer¬ 
tainty  of  ancient  landmarks,  and  the  unsatisfactory  nature  of  the  docu¬ 
mentary  evidence.”  [See  Attorney  General  Phillips’s  report,  Jan.  23, 
I860.]  This  statement  is  in  direct  conflict  with  the  prior  opinion  of 
Massachusetts  officers.  But  supposing  it  to  be  so  ;  is  that  sufficient  rea¬ 
son  why  some  effort  should  not  be  made  to  find  it  ?  True ;  the  parties 
interested  have  not  yet  been  able  to  see  alike ;  they  seldom  do ;  but  it 
does  not  follow  that  disintere°ted  Commissioners  appointed  by  the  Su¬ 
preme  Court  might  not  find  the  ancient  and  true  line.  None  such  have 
yet  made  the  attempt.  Until  they  have  had  an  opportunity  to  try,  it  is 
not  reasonable  to  suppose  they  would  not  succeed.  In  1848,  a  joint 
special  committee  of  the  Senate  and  House  of  Representatives  of  Mas¬ 
sachusetts,  in  a  very  elaborate  and  careful  report  to  the  Legislature, 
say  that  it  was  proved  before  them  that  “the  line  of  1741  could  be 
run  without  difficulty.”  [See  Senate  Doc.  No.  128,  1848,  p.  58.] 
Again  on  page  68  of  the  same  document  the  committee  say :  “  The 
line  of  the  Commissioners  of  1741  is  precisely  marked  out  in  their  pro¬ 
ceedings  and  by  their  plan ;  and  there  will  he  no  difficulty  in  ascer¬ 
taining,  by  well  known  principles  of  law,  the  precise  location.” 

They  would  find  the  line  either  where  Massachusetts  claims  it  to  be, 
or  wrhere  Rhode  Island  locates  it,  or  else  somewhere  between  them. 
In  no  event  would  they  go  outside  of  the  disputed  territory  itself,  and 
at  the  worst  their  line  would  only  coincide  with  the  claims  of  Rhode 
Island ;  but  this  would  not  take  away  from  Massachusetts  anything 
she  now  has  in  fact ;  since  Rhode  Island  has  long  exercised  jurisdic¬ 
tion  as  far  eastward  as  she  contends  the  line  to  be.  In  the  worst  re- 


6 


suit  of  the  case,  therefore,  Massachusetts  could  only  fail  to  recover 
back  the  territory  she  thinks  Rhode  Island  has  unjustly  encroached  up¬ 
on  ;  but  her  present  actual  jurisdiction  would  not  be  reduced  in  the  slight¬ 
est  degree.  And  even  that  result  would  be  an  advantage  of  $1,500,000 
over  the  present  proposed  exchange.  But  should  the  United  States 
Commissioners  “split  the  difference,”  as  is  not  impossible,  it  would  be 
so  much  clear  gain  for  Massachusetts,  with  no  corresponding  loss.  If 
they  could  not  find  the  exact  line,  every  foot  of  the  way  to  a  mathe¬ 
matical  certainty,  they  might  approximate  to  it  with  substantial  accu¬ 
racy,  sufficient  for  all  practical  purposes.  De  minimis  non  curat  lex. 
Wherever  the  Commissioners  should  establish  the  line,  it  would  forev¬ 
er  end  the  controversy.  Massachusetts  would  be  entirely  content 
with  the  result.  Rhode  Island  must  abide  by  it.  And  the  line  thus 
fixed  would  by  both  States  be  deemed,  and  taken  to  have  always  been 
the  true  and  ancient  line.  The  controversy  would  thus  reach  a  natu¬ 
ral,  a  reasonable,  and  a  satisfactory  result  to  all  parties.  Such  was 
the  mode  contemplated  by  the  Legislature  in  1848,  directing  the 
Governor  to  “  institute  such  process  as  he  may  deem  proper  in  the 
Supreme  Court  of  the  United  States,  for  the  purpose  of  having  a  final 
adjudication  upon  said  line.”  Such  was  the  declared  object  sought  in 
the  bill  in  equity  itself.  Here  is  the  prayer  of  that  bill,  as  the  law¬ 
yers  call  it :  “  And  your  complainants  pray  that  the  boundary  line 

between  Rhode  Island  and  Massachusetts  may,  by  the  order  and  de¬ 
cree  of  this  honorable  Court,  be  run  out,  distinguished,  ascertained 
and  established,  and  monuments  erected  thereon ;  and  that  a  commis¬ 
sion  may  issue  for  that  purpose,”  &c. 

In  1853,  His  Excellency,  John  H.  Clifford,  declared  in  his  inaugu¬ 
ral  address  :  “  The  long  pending  controversy  between  us  and  Rhode 

Island,  concerning  the  true  boundary  between  the  two  States,  under 
the  direction  of  the  Executive,  and  in  conformity  with  the  expressed 
will  of  the  Legislature,  has  been  brought  before  the  Supreme  Court  of 
the  United  States  for  a  final  determination  and  adjustment,  and  the 
protracted  and  vexatious  controversy  will  now  be  decided  by  an  um¬ 
pire  in  whose  judgment  it  can  not  be  doubted  both  parties  will  repose 
with  extra  confidence.”  No  doubt  of  it.  This  is  precisely  what  the 
people  of  Massachusetts  desire.  In  1848,  the  Hon.  Tristam  Burgess, 
of  Seekonk,  residing  on  the  very  territory  now  proposed  to  be  ceded 
to  Rhode  Island,  entered  his  most  solemn  protest  against  any  agree¬ 
ment  transferring  to  Rhode  Island  any  territory  rightfully  belonging  to 
Massachusetts ;  and  under  the  sanctions  of  his  oath,  declared  thus : 
“  Finally  I  state  it  as  a  fact,  which,  from  all  I  have  heard,  I  fully  be¬ 
lieve,  that  the  people  of  Massachusetts,  bordering  on  this  line,  from 
the  ocean,  to  the  line  of  this  State  on  the  north,  will  never  be  satisjied, 
until  this  line  is  settled  by  the  Supreme  Court  of  the  United  States.” 
For  more  than  twenty  years  the  people  of  Fall  River,  Westport, 


7 


Swanzey,  Seekonk,  Pawtucket  and  Attleborough,  along  on  this  line 
have  been  constantly  demanding  that  this  question  should  be  settled 
by  the  Supreme  Court ;  and  that  commissioners  appointed  by  that 
Court  should  run  out  and  declare  the  true  line  of  1741.  At  a  gener¬ 
al  convention  of  the  people  held  at  Fall  River  in  June  1847,  upon 
this  very  subject,  it  was  unanimously  resolved  that  “  the  only  proper 
tribunal  for  determining  all  such  matters,  and  the  only  one  that  will 
give  satisfaction  to  all  concerned,  is  the  Supreme  Court  of  the  United 
States.”  Finally  in  1852,  the  suit  is  brought  in  the  United  States 
Court  for  that  very  purpose.  And  just  as  we  are  or  ought  to  be  in  a 
condition  to  obtain  some  decision  upon  our  rights,  the  whole  .pursuit  is 
suddenly  abandoned.  Why  ?  At  whose  instigation  is  the  whole  poli¬ 
cy  of  the  government  so  suddenly  reversed  ?  A  policy  which  fifty 
years  of  repeated  experiments  had  proved  absolutely  necessary  to  be 
carried  oyt,  before  any  satisfactory  negotiation  could  be  accomplished 
in  settling  this  important  question  !  Who  first  suggested  the  resolve 
authorizing  any  renewed  negotiations?  What  satisfactory  public 
reason  can  be  given  for  such  a  sudden  change  in  the  management  of 
this  case  ? 

What  has  occurred  to  show  the  impossibility  of  terminating  the 
controversy  in  the  way  first  proposed  ?  Has  any  new  light  dawned 
upon  the  case,  since  it  was  commenced,  that  makes  it  necessary  to 
strike  our  flag,  before  firing  the  first  gun  ?  Has  the  “  unsatisfactory 
character  of  the  documentary  evidence  ”  become  so  wonderfully 
changed,  or  has  “  the  uncertainty  of  the  ancient  landmarks  ”  so  marvel¬ 
ously  increased  since  the  bill  was  filed,  that  no  person  shall  be  now  re¬ 
quested  even  to  look  for  them  ? 

Second, — Is  the  proposed  exchange,  just  and  expedient  ?  In  the 
first  place  it  is  grossly  unequal,  in  population,  ratable  polls,  voters,  tax¬ 
able  property  and  territory. 

By  the  census  of  1860,  Pawtucket  has  a  population  of  4,200 


That  part  of  Seekonk  ceded  to  Rhode  Island,  1,854 

Total,  - 6,054 

Fall  River,  R.  I.,  has  3,377 

Tiverton,  (5  houses)  say  23 

Total,  - 3,400 


Balance  against  Massachusetts,  2,654 


8 


Number  of  Ratable  Polls  in  Pawtucket.  951 

“  “  Seekonk,  388 

Total,  - 1,339 

Number  of  Ratable  Polls  in  R.  I..  less  than  839 


Balance  against  Massachusetts,  500 

Number  of  Voters  in  Pawtucket,  (1857)  603 

“  “  Seekonk  “  325 

Total,  -  928 

Number  of  Voters  in  R.  I.,  not  over  335 


Balance  against  Massachusetts, 


593* 


Taxable  property  of  Pawtucket,  (town  val¬ 
uation,  1860) 

do.  Seekonk,  do. 

Total, 

Taxable  property  in  Rhode  Island,  (same) 
not  over 


$1,976,139 

1,021,359 

- 2,997,498 

1,300,000 


Balance  against  Massachusetts,  $1,697,498 

Right  of  access  to  tide  waters  lost,  (miles,)  23^ 

“  “  gained,  “  not  over  3 

Balance  against  Massachusetts,  204 

Acres  of  land  in  Massachusetts,  transferred,  11,840 

“  “  Rhode  Island,  acquired,  one-third 

of  which  is  fresh  water  ponds,  having  their  nat¬ 
ural  outlet  in  Massachusetts,  7,040 

Balance  against  Massachusetts,  4,800 


By  the  above  facts  it  clearly  appears  that  if  this  arrangement  is 
consummated.  Bristol  County  will  incur  a  net  loss  of  one  thirty- fifth 
of  her  entire  population  ;  and  in  valuation,  a  net  loss  of  about  one 
fortieth  of  her  entire  taxable  estate  !  As  great  a  proportionate  loss 
to  the  County  of  Bristol  as  to  the  State  would  be  the  whole  population 
of  the  County  of  Franklin,  or  the  wealth  of  Barnstable,  Nantucket  and 
Duke’s  Counties  combined  ! 

In  every  respect,  therefore,  it  is  manifest  that  Massachusetts  is  the 
loser.  And  this  is  so,  even  if  Rhode  Island  had  the  clear  and  undis¬ 
puted  right  to  that  which  Massachusetts  is  thus  buying  of  her  at  so  great 
a  price.  What  will  be  thought  of  the  negotiation,  in  a  mercantile  point 


*  Probably  this  balance  would  be  somewhat  reduced  by  counting  those  natur¬ 
alized  persons  in  Rhode  Island,  who  are  not  voters  there,  but  might  become  such 
in  Massachusetts.  There  may  he  100  in  all. 


9 


of  view,  when  it  is  remembered  that  a  large  portion  of  this  very  terri¬ 
tory  said  to  be  acquired  by  the  conventional  line  is  already  ours  .by 
right?  Gov.  Boutwell,  in  his  message  of  March  31st,  1851,  on  this 
subject  says:  ‘;I  have  no  doubt  that  the  line  here  (at  Fall  River) 
claimed  by  Massachusetts  is  the  true  line.”  The  citizens  of  Fall  Riv¬ 
er,  in  1860,  unanimously  resolved  that  they  “  would  have  been  con¬ 
tent  with  the  decision  of  the  Court,  which,  in  the  opinion  of  the  late 
Mr.  Choate,  and  other  eminent  lawyers,  would  have  given  us  the  four 
hundred  and  forty  rods  to  the  southward. of  the  mouth  of  Fall  river, 
which  would  ha  ve  included  Jive- sixths  of  the  population  obtained  by 
the  conventional  line.”  To  buy  our  own  property  and  pay  twice  its 
value  must  be  the  culmination  of  commercial  sagacity! 

But  in  looking  at  this  subject  in  the  light  of  equivalents,  it  should 
not  be  forgotten  that  in  1860,  the  Rhode  Island  commissioners  con¬ 
sented  to  relinquish  to  Massachusetts  all  they  now  do,  in  exchange  fol¬ 
iar  less  of  Massachusetts  property  than  the  present  line  transfers 
to  Rhode  Island.  The  original  conventional  line  first  agreed  upon 
did  not  cede  any  part  of  Pawtucket  to  Rhode  Island,  but  only  a  part 
of  Seekonk,  and  Swanzey,  and  a  small  tract  in  Westport.  By  that 
line,  the  balance  against  Massachusetts  in  valuation,  was  about 
$150,000  instead  of  $1,600,000  That  exchange  was  a  great  bargain 
for  Rhode  Island.  It  was  agreed  to  by  her  Commissioners  and  by  the 
joint  committee  in  her  General  Assembly.  The  bill  for  it  passed  the 
House,  and  Mr.  Hayes  there  said  that  the  control  of  Narragansett 
Bay  alone  was  worth  all  they  were  required  to  part  with.  In  order  to 
carry  it  through  the  Senate,  an  alteration  of  the  contract  was  made 
by  which  Rhode  Island  should  gain,  and  Massachusetts  would  lose 
$1,500,000  more  than  the  Rhode  Island  Commissioners  ever  had  the 
face  to  ask !  Unaccountable  as  this  may  appear,  it  is  strictly  true. 
But  no  corresponding  equivalent  from  the  State  of  Rhode  Island 
so  far  as  we  can  learn,  was  ever  offered  to  us  by  that  state. 

Now  this  great  inequality  has  a  practical  interest  for  every  tax 
paver  in  the  County  of  Bristol. 

By  our  last  County  Treasurer’s  report  he  foots  up  an  indebtedness 
of  about  $100,000,  most  of  which,  sooner  or  later,  must  be  paid  by  di¬ 
rect  taxation.  Striking  out  $1,500,000  of  our  entire  assets  at  one  ne¬ 
gotiation  does  not  lighten  the  burden  upon  the  remainder.  To  the 
loss  thus  arising  from  a  diminution  of  our  assets  must  also  be  added 
that  consequent  upon  the  reduced  number  of  ratable  polls,  which  can¬ 
not  well  be  less  than  $500  to  $800  on  every  county  tax. 

Nor  is  this  all.  Our  State  valuation  for  the  next  ten  years  has  just 
been  completed.  The  estimate  for  Bristol  County  is  $66,294,256. 
On  that  sum  our  proportion  of  the  State  tax  is  to  be  computed  until 


10 


1870.  Whether  we  have  it  or  have  it  not,  we  must  pay  the  State 
taxes  on  that  sum,  until  a  new  valuation  takes  place.  By  the  pro¬ 
posed  exchange  the  entire  taxable  estate  of  the  County  is  essential¬ 
ly  diminished. 

But  were  the  proposed  exchange  entirely  equal  in  all  respects,  is  it 
expedient  to  make  it?  The  argument  in  favor  of  doing  so  is  that  it 
will  be  for  the  interests  of  Fall  River,  to  bring  “under  one  jurisdiction 
the  whole  of  a  densely  peopled  territory,  hitherto  divided  by  an  imagi¬ 
nary  line,  cutting  diagonally  across  streets  and  through  residences  and 
subject  to  the  diverse  laws  and  policy  of  separate  States.”  This  is  the 
reason  put  forth  by  the  citizens  of  Fall  River  in  their  Resolutions  of 
1860.  Grant  it.  Give  to  the  consideration  the  weight  to  which  it  is 
entitled.  Is  that  a  sufficient  reason  why  a  much  larger  portion  of  our 
own  people,  territory  and  property  should  be  ceded  away  in  exchange 
and  against  the  consent  of  those  thus  to  be  transferred?  It  may  fur¬ 
nish  a  good  reason  why  the  territory  claimed  by  Rhode  Island,  adjoin¬ 
ing  Fall  River,  should  be  bought,  and  paid  for  out  of  the  public  treas¬ 
ury,  and  all  adverse  claim  thereto  on  the  part  of  Rhode  Island  extin¬ 
guished.  Against  that  we  have  nothing  to  say.  But  is  it  a  sound 
and  safe  precedent  to  establish,  that  the  boundaries  of  our  Common¬ 
wealth  shall  be  continually  shifting  whenever  a  town  happens  to 
grow  up  on  the  border,  extending  into  an  adjoining  State,  whose  inter¬ 
ests  would  be  promoted  by  being  under  one  jurisdiction?  If  so,  we  are 
indeed  held  together  by  a  rope  of  sand.  To-day  our  northern  bound¬ 
ary  is  a  straight  line  from  the  Merrimack  to  the  Empire  State.  To¬ 
morrow  it  may  be  as  winding  and  irregular  as  the  Merrimack  itself. 
This  year  one  county  may  be  the  largest  and  most  populous  in  the 
State ;  the  next  it  may  be  the  smallest  and  most  insignificant.  If  the 
principle  is  a  sound  one  in  Bristol,  it  is  in  Berkshire,  and  an  addition 
to  one  county  may  be  obtained  by  the  cession  of  perhaps  a  much 
larger  territory  from  quite  a  different  county. 

Besides ;  what  is  to  hinder  a  repetition  of  the  same  exchange  a  few 
years  hence  at  Fall  River  itself?  That  flourishing  city  may  extend 
in  a  short  time  down  to  the  boundary  line  it  is  now  proposed  to  create. 
Its  business  interests  will  have  again  pushed  it  across  the  border.  The 
present  inconveniences  will  again  present  themselves,  aggravated  by 
the  increased  population  of  the  city.  In  the  mean  time  the  city  of 
Providence  has  been  lengthening  her  cords  and  strengthening  her 
stakes  eastward,  and  her  wants  and  interests  require  additional  room 
for  expansion.  If  the  argument  for  exchange  is  sound  now,  it  will  be 
then  ;  and  another  slice  must  be  carved  off  from  Massachusetts  in  ex¬ 
change  for  an  equal  or  less  territory  from  our  more  sagacious  neigh¬ 
bor.  Who  can  foretell  the  end  of  the  series?  Can  it  be  wise;  can 
it  be  expedient  thus  to  be  constantly  disturbing  our  long  established 
and  intimate  relations,  dividing  towns,  separating  school  districts,  sun- 


11 


dering  parishes  and  religious  societies,  and  subjecting  our  people  to 
such  continual  changes  in  all  their  civil,  social,  and  political  relations? 

1'hird.  Is  the  exchange  constitutional ?  It  is  to  be  noted  that  this 
is  not  a  proposition  to  settle  by  agreement  what  was  the  true  and  real 
line,  but  it  is  to  cede  away  the  acknowledged  and  undisputed  territory 
and  people,  soil  and  citizens  of  one  State  for  those  claimed  by  another. 
The  natural  objection  entertained  by  all  loyal  citizens  to  such  a  pro¬ 
ceeding  is  well  set  forth  in  the  petition  of  the  city  of  Fall  River  itself 
(now  said  to  be  in  favor  o'f  trading  away  Pawtucket  and  Seekonk.) 
signed  by  over  five  hundred  of  her  most  respectable  citizens,  in  these 
words : 

“  To  the  Hon.  Senate  and  House  of  Representatives  in  General 
Court  assembled:  The  undersigned  inhabitants  of  Fall  River,  res¬ 
pectfully  pray  that  no  part  of  the  territory  within  the  rightful  bounda¬ 
ries  of  this  Commonwealth  may  be  alienated  therefrom  to  the  State  of 
Rhode  Island  by  the  voluntary  act  of  the  Legislature  of  Massachu¬ 
setts.” 

True;  this  petition  was  signed  and  presented  in  1848,  but  princi¬ 
ples  remain  the  same,  although  circumstances  are  said  to  alter  cases! 

Neither  is  it  a  question  whether  those  citizens  who  desire  to  leave 
Massachusetts  with  their  persons  and  property  shall  be  allowed  to  do 
so  ;  but  it  is  whether  those  who  are  anxious  to  remain  in  this  Common¬ 
wealth  shall  be  compelled  to  depart.  And  here  again  we  are  indebted 
to  Fall  River  for  the  forcible  presentation  of  the  feelings  and  senti- 
meuts  which  now  influence  and  govern  a  very  large  number  of  inhab¬ 
itants  of  Massachusetts  residing  upon  the  territory  proposed  to  be  ce¬ 
ded  away.  For  in  1848  the  line  agreed  upon  by  the  Commissioners 
of  the  two  States  (afterwards  repudiated  by  Massachusetts,)  left  a  few 
citizens  at  Fall  River  on  the  Rhode  Island  side.  Those  citizens  very 
properly  remonstrated  against  the  line,  saying  that  “  they* had  contrib¬ 
uted  their  full  proportion  to  the  public  buildings,  churches,  and  school 
houses  in  Massachusetts,  that  they  had  long  enjoyed  in  safety  and  tran¬ 
quility,  the  blessings  of  life  under  the  stable  institutions  and  beneficent 
laws  of  this  Common wealth ;  that  their  children  had  received  and  im¬ 
proved  the  privileges  and  advantages  of  education,  and  of  moral  and 
religious  instruction,  secured  by  her  constitution  and  laws ;  and  which 
were  the  rich  inheritance  of  her  children.  That  their  sympathies 
were  with  her  institutions  and  people,  and  they  cherished  the  hope 
that  the  same  advantages  and  blessings  would  be  the  inheritance  of 
their  children’s  children.”  Their  prayer  prevailed;  the  General  Court 
declared  the  action  of  her  own  officers  null  and  void  ;  and  those  peti¬ 
tioners  still  remain  citizens  of  Bristol  County.  Is  our  Commonwealth 
less  considerate  of  her  loyal  and  faithful  people  now  than  in  1848? 


12 


But  the  existence  of  any  constitutional  power  to  cede  away  the  peo¬ 
ple  and  territory  of  a  State  is  at  least  doubtful.  If  it  can  be  done  with 
one  town  it  may  with  two,  and  with  an  entire  county.  If  the  right  be 
admitted  nothing  can  prevent  the  constant  tampering  with  the  bound¬ 
ary  as  often  as  an  occasion  or  a  temptation  arises.  The  dominant  po¬ 
litical  power  in  a  State  may  exchange  any  portion  of  their  political 
opponents  for  an  equal  number  of  their  political  friends  from  another 
State ;  provided,  always,  Congress  consents ;  and  how  that  con¬ 
sent  can  be  obtained,  we  shall  presently  see.  Again  ;  if  territory  of 
Massachusetts  may  be  constitutionally  ceded  to  an  adjoining  State,  it 
may  be  to  one  more  distant.  Boston,  and  Charleston,  S.  C.,  may 
change  sovereignties  if  the  Legislatures  of  the  two  States  see  fit,  and 
Boston  has  no  redress !  Can  it  be  that  the  tenure  of  our  citizenship 
in  Massachusetts  is  so  frail? 

But  if  the  right  exists  at  all  under  our  Constitution,  it  can  reside 
only  in  the  Legislature ,  the  direct  representative  of  the  people  them¬ 
selves.  To  cede  away  our  domain  is  one  of  the  highest  Legislative 
acts.  It  cannot  be  delegated  to  the  Attorney  General,  even  subject 
to  the  approval  and  direction  of  the  Governor  and  Council ;  which,  it 
is  claimed  has  been  done  by  the  Resolve  of  1859,  ch.  69.  Our  bill  of 
Rights,  Art.  XXX.,  declares  that,  “  in  the  government  of  this  Com¬ 
monwealth,  the  Executive  shall  never  exercise  the  legislative  and  ju¬ 
dicial  powers,  or  either  of  them ;  to  the  end  that  it  may  be  a  govern¬ 
ment  of  laws  and  not  of  men.”  As  well  might  the  Legislature  dele¬ 
gate  to  the  Governor  and  Council  the  power  to  make  all  the  laws, 
and  adjourn  themselves  after  the  first  week  of  their  session  ! 

It  is  hardly  necessary  to  add  in  this  connection,  that  by  the  existing 
laws  of  this  Commonwealth,  [Gen.  Statutes,  ch.  17,  p.  1.]  “The 
boundaries ,  rights,  duties,  powers,  privileges  and  immunities  of  the  sev¬ 
eral  counties  shall  remain  as  now  established.”  Of  course  as  this  is 
but  a  Statute,  and  not  a  constitutional  provision,  the  Legislature  may 
change  the  boundaries  of  two  adjoining  counties  in  this  Commonwealth 
as  was  held  by  the  Supreme  Court  in  1851,  [see  6  Cush.  578,]  but  no 
power  less  than  the  Legislature  can  do  it.  It  would  be  in  direct  con¬ 
flict  with  the  Statute  above  cited. 

But  again ;  even  if  the  power  to  make  the  proposed  exchange  of  ter¬ 
ritory  could  be  constitutionally  delegated  to  the  Governor  and  Coun¬ 
cil,  did  the  Legislature  of  1859  intend  to  give  any  such  power  on 
this  subject  as  has  been  exercised?  Here  is  the  resolution: 

“Resolved,  That  the  Attorney  General  and  the  counsel  on  behalf  of  the  Com¬ 
monwealth,  subject  to  the  direction  and  approval  of  the  governor  and  council,  be 
and  they  arc  hereby  authorized  to  negotiate  for  the  adjustment  of  the  proceeding 
in  equity  now  pending  in  the  supreme  court  of  the  United  States  between  this 
Commonwealth  and  the  State  of  Rhode  Island,  and  Providence  Plantations,  by 
the  adoption  of  a  conventional  line,  to  be  confirmed  by  a  decree  of  said  court,  and 


13 


that  for  the  purpose  aforesaid,  and  the  general  expenses  of  conducting  said  suit, 
the  governor  be  authorized  to  draw  his  warrant  for  a  sum  not  exceeding  five 
thousand  dollars.” 

“  Negotiate  for  the  adjustment  of  the  proceeding  in  equity  now 
pending  in  the  Supreme  Court.”  What  was  that  proceeding  in  equi¬ 
ty  ?  It  was  to  ascertain  and  determine  the  true  line  on  certain  disput¬ 
ed  territory.  Nothing  more.  An  authority  to  adjust  that  line  might 
empower  the  Attorney  General  to  agree  upon  some  conventional  line 
within,  upon  and  relating  to  the  disputed  territory,  but  not  to  negotiate 
for  other  territory  entirely  outside  of  it.  It  would  not  authorize  the 
exchange  of  one-half  of  Massachusetts  for  one-half  of  Rhode  Island, 
which  might  have  been  done  under  that  resolve  with  as  much  pre¬ 
tence  of  right,  as  that  which  has  been  done  under  it.  No  per¬ 
son  would  naturally  understand  by  that  resolve  that  author¬ 
ity  vras  given  to  cede  away  any  material  portion  of  territory, 
about  which  there  was  no  dispute,  and  to  which  Rhode  Island  made 
not  the  least  claim.  Yet  every  acre  of  the  two  towns  proposed  to  be 
given  to  Rhode  Island  is  acknowledged  to  be  our  soil,  as  much  as  that 
on  wdiich  the  State  House  in  Boston  stands.  The  difference  between 
the  two  powers  is  manifest.  The  power  to  adjust  and  determine  bound¬ 
ary  lines  is  a  very  different  power  from  that  of  creating  entirely  new 
boundaries.  In  a  dispute  between  individuals  as  to  the  boundaries  of 
their  farms,  arbitrators  appointed  to  adjust  the  same  cannot  transfer 
land  from  one  to  the  other.  They  can  only  determine  the  pre-existing 
lines.  \_Searle  v.  Abbe,  13  Gray’s  Rep.  412.] 

It  is  clear  therefore  that  the  resolution  does  not  authorize  the  pro¬ 
ceedings  done  under  it. 

One  more  suggestion  and  we  close.  It  is  admitted  on  all  sides  that 
two  states  can  not  make  any  agreement  transferring  each  other’s  terri¬ 
tory  “without  the  consent  of  Congress.”  [Constitution  ol  the  United 
States,  Art.  I,  Sec.  1 0.]  It  is  claimed  by.  some  that  such  consent  has 
been  obtained;  and  in  this  mode.  In  1859  Congress  enacted  the  fol¬ 
lowing  Statute : 

“Be  it  enacted,  &e.,  That  the  Attorney  General  is  hereby  authorized  and  direc¬ 
ted  to  intervene  and  represent  the  United  States  in  the  proceeding  in  equity,  now 
pending  in  the  Supreme  Court  between  the  Commonwealth  of  Massachusetts 
and  the  State  of  Rhode  Island  and  Providence  Plantations,  and  to  consent  on  be¬ 
half  of  the  United  States  to  the  adjustment  of  said  suit  by  a  conventional  line  to 
be  agreed  upon  by  the  parties,  and  confirmed  by  a  decree  of  said  Court,  if,  in 
his  judgment,  the  rights  and  interests  of  the  United  States  will  not  bo  prejudiced 
thereby.” 

Unless  the  consent  of  the  Attorney  General  under  this  act  to  the 
proposed  conventional  line  is  the  consent  of  Congress  within  the  mean¬ 
ing  of  the  Constitution,  it  is  admitted  that  the  compact  is  unauthoriz¬ 
ed.  But  how  can  Congress  delegate  that  power  to  the  Attorney  Gen- 


14 


eral  ?  The  Constitution  vests  it  in  Congress ;  the  whole  Congress. 
They  can  no  more  delegate  to  the  Attorney  General  that  power  than 
any  other.  It  is  a  matter  entrusted  to  their  judgment  and  their  dis¬ 
cretion.  But  this  statute,  if  valid,  confides  the  whole  matter  to  the 
judgment  and  discretion  of  the  Attorney  General,  even  in  advance  of 
knowing  what  the  proposition  is. 

If  this  objection  is  valid,  Congress  must  give  its  consent  in  some  oth¬ 
er  form  before  the  proposed  exchange  can  be  carried  out.  That  con¬ 
sent  may  or  may  not  be  obtained  upon  a  full  and  fair  public  hearing 
in  Congress,  hut  the  mode  by  which  consent  was  attempted  to  be  ob¬ 
tained,  has  a  suspicious  appearance.  It  is  a  part  of  the  same  scheme 
by  which  the  subject  was  withdrawn  from  the  action  of  the  Legisla¬ 
ture  of  Massachusetts,  and  entrusted  to  the  Governor  and  Council. 

Those  who  were  interested  to  bring  about  this  negotiation  knew 
full  well  that  the  Legislature  would  never  knowingly  consent  to  it. 
They  were  well  aware  how  promptly  and  how  unanimously  both 
branches  in  1848  rejected  and  repudiated  the  action  of  her  two  worthy, 
intelligent  and  able  commissioners,  and  would  not  consent  to  the  trans¬ 
fer  of  a  foot  of  territory  to  Rhode  Island  rightfully  belonging  to  Mas¬ 
sachusetts.  They  knew  there  was  no  hope  of  accomplishing  the  pro¬ 
ject  in  a  public  and  open  way.  It  must  be  smuggled  through.  Thus 
far  they  have  succeeded.  It  remains  to  be  seen  what  the  final  result 
will  be. 

And  that  suggestion  leads  to  the  final  inquiry :  What  is  now  to  bt 
done  ?  We  answer, — 

1st,  Repeal  the  Resolve  of  1859,  so  far  as  it  is  not  yet  executed 
and  direct  the  Attorney  General  of  Massachusetts  not  to  consent  to 
any  decree  in  the  United  States  Court,  establishing  the  proposed  line. 

2d.  Let  commissioners  be  appointed  by  the  United  States  Court 
to  run  out  and  mark  the  true  line,  as  near  as  practicable,  between  the 
two  States  according  to  the  object  of  the  bill  of  equity.  If  arty  nego¬ 
tiation  is  then  desirable  between  the  two  States,  we  shall  know  what 
we  need  to  buy,  and  what  our  neighbor  has  to  sell. 

3d.  If  it  is  entirely  certain  that  we  shall  fail  to  establish  our  rights 
to  any  portion  of  the  territory  in  dispute,  withdraw  the  suit  at  once. 
We  thereby  lose  nothing  which  we  now  possess,  as  Rhode  Island  .al¬ 
ready  has  jurisdiction  over  all  the  controverted  ground.  By  so  doing 
we  shall  save  over  $1,500,000  of  net  loss  incurred  by  the  proposed 
conventional  line,  and  escape  the  disgrace  of  having  voluntarily  traf¬ 
ficked  in  our  own  fellow  citizens. 


Trials „ 


L65832 

DATE 


ISSUED  TO 


Oo/.'V 


